Daily News from New York, New York • 100

EAdgEdgkbu Bittzym's Ogodd(j(BGj ggosq found to have destroyed "a report prepared found that the lineup was suggestive and tainted. Gabel, like most judges, prefers to let her cases Continued from cover -speak for themselves, rather than to elaborate on them. The Manhattan District Attorney's office, however, has taken exception to her rulings. The. reliability of Kirksey's identification of Brown should have been left to a jury, says Assistant District Attorney John F.

Frost, who is Reiner's superior and who reviewed her behavior, as well as Moran's, after Brown was set free. He erroneously ratner tnan nara evidence, ana nis actions were not deemed to be "material" to the outcome of the case. But the charges leveled by Gabel were still, serious enough for the Police Department to have transferred Moran from the robbery squad unit to the East 51st Street stationhouse last June A further investigation by the Department Is still unconcluded six months after Brown's hearing. If i Moran is hit with internal charges and found guilty, he could face a range of penalties from a simple reprimand to The DA's office has also defended Reiner's conduct, a matter that Legal Aid lawyers, as well as Gabel, criticized. At issue is whether Reiner should have turned over to the defense information that the man named as Brown's possible accomplice was in fact in Suffolk County Jail at the time of the robbery.

The Information could have led to Brown being freed i Moran replaced his original report with a new one, which was back-dated. robbers as Hispanic, then destroyed it after' interviewing Klrksey. He replaced it with a -new report, also backdated, which was based on Kirk-sey's identification of Brown. During the hearings, he blamed the backdating on a paperwork pileup that developed during his father's bout with cancer. The 11-year veteran of the force said he tore up the original report after the victim identified Brown.

At the hearing Moran explained he destroyed the riginal, "Because it was wrong." "I was going to re-type it," he said. (Assistant D.A. Reiner learned about the original only because Moran hadn't removed a copy of it his only one from the case file.) Reiner was "utterly careless," according to Gabel, in not promptly disclosing information which had some bearing on the one-witness case against Brown. The information was this: in August 1980 after Brown had been in jail for four months Reiner learned that Cotlidge the man who had been listed as a possible accomplice after he was found to match Kirksey's rough description had a seemingly irrefutable alibi, one that Gabel would call "airtight." He was in the Suffolk County jail at the time of the Klrksey robbery. In the opinion of Legal Aid lawyers as well as Gabel, the fuzzy and probably inaccurate identification of Cotlidge, even as a possible culprit, could have cast doubt on Kirksey's more positive identification of Brown.

Moran may have tainted the April 9, 1980, lineup where Klrksey picked out Brown. Moran admitted to Gabel that he "might have" told Kirksey that Brown was under arrest before she. viewed the lineup. Police and prosecutors are barred from "leading" witnesses during a lineup by giving them information about such matters as arrests. 1 It was Gabel'a determination about the lineup and about Kirksey's credibility that effectively closed the case against Brown.

The last day of the hearings, Feb. 24, Gabel ruled that Kirksey would not be permitted to identify Brown at a trial and far sooner than he was, Legal Aid attorneys say. But Frost says Reiner did her job she provided -enough information to enable Brown's lawyers to figure out that the second man named was Cotlidge 1 and to discover his alibi. Reiner's conduct does not warrant sanctions of any sort, he says. Taking issue with him is Legal Aid lawyer Carol Halprin.

Frost's reasoning is lacking, she says, because under rules promulgated by the U.S. Supreme Court, a prosecutor must disclose any information that points to a defendant's innocence. -Fragments of a description or any other type of clue, says Halprin, don't meet the. prosecution's obligation. Exactly what lies ahead for Michael Brown is unclear.

In an interview this spring, Brown said he was a few months from completing his high school equivalency requirements and was mulling over the noKsihilitv of trvinff tn en tn rnlleffe nf lnnrlinff a argues that Moran and Reiner accepted Kirksey's anger as the basis for her false description on the night of the robbery and that both public officials decided that Kirksey's later identification of Brown was reliable. "This Is a question of credibility," says Frost "Basically it's a one-witness robbery case. It's a classic jury question whether they are going to believe this complainant or not. That's why we have juries to decide these questions." After receiving a report on the incident from internal police investigators, the District Attorney's office decided against bringing Moran's actions before a grand jury. According to Frost, Moran was job Now 19, Brown left the Project Return program on July 7 without that diploma.

Brown's obligation to stay in the skills program ended when the Indictment fizzled and he stayed on only for another three months on his own. When last called, his mother believed her son to be living "uptown." New design offered for Portman Hotel a- JUS'S If I ri-ft'lifri back half of the hotel, where the theaters are," said Pomeroy. "Just not building their own theater might save them close to $10 million" Pomeroy's plans shift the atrium the trademark of properties designed by John Portman, the Atlanta, developer far enough towards Broadway to miss the Hayes and the Morosco. Steel trusses which would not obstruct sight lines in the theater would support the hotel, which would be perched atop the theaters. "The changes would not affect the look of the hotel, its atrium or lobby," he said.

"In fact, it adds to the aesthetic look of the building because the Hayes and Morosco facades be built into the hotel," said Pomeroy. This latest effort to save the theaters was met with skepticism at Port-man's Atlanta headquarters. "We have been working on this project for nearly eight years," said a weary-sounding Glenn Isaacson, project director. "From the atari we wanted to save those three theaters. We tried many plans which would have made them part of the hotel.

The plain truth, no matter how we look at it, is that a hotel on that site, accomodating all of those guests, workers and businesses just cant be 'built around or over those theaters. Believe me, we would save them if we could." By BRUCE CHADWICK A last ditch effort to save three historic theaters slated to make way for the 50-story Portman Hotel in Times Square was kicked off yesterday with the unveiling of a plan to redesign the proposed hotel so that it is built over and around the theaters the Morosco, the Helen Hayes, and the Bijou. The new plan, designed by architect Lee Pomeroy and sponsored by the actors' union and the Actors' Equity Association, calls for the entire hotel to be turned around so that its stepped glass tower faces 6th Ave. Instead of Broadway. It would also eliminate the proposed 1,500 seat theater and relocate retail stores from the Eighth Avenue end of the site to Broadway.

Eight years in the planning, the lavishly designed $292-million con-crete-and-glass hotel is slated for the block between W.45th and W.48th Sts. Reached in Atlanta, officials of Portman Properties, dismissed the plan as unworkable. Although he admits the new plan. If adopted by the state's Urban Development Corporation and Portman would delay construction six to nine months, Pomeroy claims it will not cost the developer more money. "I fact, they might save money by eliminating the theater and the lower i'( kJj-jV'1 v' fit, -4 The Helen Hayes Theatre, one of three that may be torn down to make way for the Portman Hotel.

Isaacson said yesterday's architectural unveiling comes at "a very late date" and would be costly. He said Pomeroy was dreaming" when he- said the newly designed building would cost no more than the proposed complex. "What they want is a whole new hotel. Just to redesign it would cost $7 to (8 million. We would have to get all new approvals from the responsible agencies because this is a new building and that would take 18 Continued on page 6.